If a contract is in the 5th year but additional work is needed, can a BOA be extended beyond the 5th year by an option, or in any other way?
DAU consulted with a member of AT&L's Defense Procurement and Acquisition Policy (DPAP) staff who is knowledgeable on international contracting matters. Here is the advice DPAP provided:
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BOAs are only written instruments of understanding and not a contract -- they do not bind the parties. The orders themselves are actually the contractual instruments. Since the BOA is not a contract, DFARS PGI 217 guidance does not apply. As a result, the DFARS 216.703 limitations which specify that the ordering period for a BOA cannot exceed 5 years governs this situation. Of course, an order placed under a BOA in the 5th year may have a period of performance extending beyond the 5 year ordering period; this would be acceptable. But, if additional work beyond the original order is needed after the 5 year BOA ordering period expires, a new BOA would have to be established. Alternatively, another contractual instrument or contract could need to be established to perform the additional FMS-related work.
Bottom Line: The fact that the work is FMS-related does not influence the situation; the guidance for DoD "domestic" and FMS customer contracting under BOAs is the same.